Before the former waste transfer station at this same location was closed in 1999, the Gracie Point community suffered greatly from odors, vermin and pollutants.  The proposed MTS would create even more severe problems for the Gracie Point community.

How does the East 91st Street MTS fit into the City overall garbage plan?
The East 91st Street MTS would be one of four new marine transfer stations to be built in Brooklyn, Manhattan and Queens, and the only new one to be built in Manhattan. The current MTS at West 59th Street would be offered only to commercial waste haulers for export of commercial waste collected in Manhattan. Waste which would have been taken to the MTS at West 135yh Street will be taken by collection trucks to a waste-to-energy plant in New Jersey instead.

A concept called “Borough sufficiency” also has been introduced.  “Borough sufficiency” maintains that those who create the garbage also must take responsibility for disposing of that garbage.  While sensible in theory, “Borough sufficiency” does not take into account that locations for garbage disposal need to be chosen for their suitability.

Where things stand...

New York City Council

The City Council passed a resolution on July 19th 2006  by a vote of 44-5 approving an amended version of a solid waste management plan (SWMP) that includes the proposed East 91st Street marine transfer station.

Council Member Jessica Lappin, the only member of the Sanitation and Solid Waste Management Committee of the Council to vote against the plan, and Council Member Dan Garodnick fought hard to stop the East 91st Street Marine Transfer Station from being included but were overwhelmed by the strong support for the plan in the outer boroughs. We appreciate their efforts, especially in the face of such a  powerful campaign from the City administration and Council Speaker Christine Quinn to adopt the Mayor’s plan.

We also appreciate the efforts of State Senator Liz Krueger and State Assemblymen Pete Grannis and Jonathan Bing who spoke on our behalf at the June 26th 2006 community rally and Sanitation and Solid Waste Management committee hearing and who will continue to support our opposition to the plan in Albany.

New York State Department of Environmental Conservation and Army Corp of Engineers.

The New York State Department of Environmental Conservation (NYSDEC) approved the SWMP on October 27, 2006. Applications by DSNY for permits, as well as draft permits, were deemed complete on May 30, 2007. An administrative law judge from the NYSDEC Office of Hearings and Mediation conducted a legislative hearing on October 9, 2007 to hear statements from the community. That was followed by an Issues Conference on October 16 and a visit by the judge to Asphalt Green and its surroundings on October 17. The Conference was held to determine party status for any person or organization that properly filed, and to narrow and define issues that will require adjudication.

The administrative law judge for the New York State Department of Environmental Conservation issued his rulings on the permit applications for the East 91st Street marine transfer station on April 7, 2008. While he ruled that the Gracie Point petitioners are entitled to full party status, he ruled against us on all but one of our objections.

The judge said “Gracie Point argued correctly in its petition that DSNY has not shown that noise levels from the transfer station will comply with  (New York environmental regulations) operational requirements. This point must be addressed through an additional submittal from DSNY, to which Gracie Point is entitled to respond. Though noise has not yet been identified as an issue requiring adjudication, it remains possible that it will be, and Gracie Point has retained a noise expert whose testimony could be helpful if adjudication is required.”

We appealed the rulings against us and DSNY submitted a report on noise levels. We challenged its findings and asked NYSDEC to reject the permit application or, in the alternative, set the noise issue for adjudication. On July 27, 2009 the assistant commissioner of NYSDEC issued a decision affirming the administrative law judge’s findings and directing the staff to issue the permits.

The draft permits contain 15 general conditions and 50 special conditions, with an additional set of 9 conditions allocated between the federal and state departments.  The operating permit sets maximum peak day limit for the facility at 1,860 tons per day, with an “upset’ limit of 4,290 tons and an emergency limit of 5,280 tons. Among the special conditions in the draft permit is are a prohibition of truck queuing on public streets (except under upset and emergency conditions), a limit of 17 trucks queued on the ramp, a requirement that a staff person be at the foot of the ramp when trucks are delivering waste, a requirement that video cameras accessible to NYSDEC on a real time basis be installed to monitor queuing compliance, a requirement that all waste be containerized within 24 hours of delivery and all containers removed within 48 hours, and limit for DSNY trucks of 0.1 grams of diesel particulate for pre-2007 trucks and 0.01 grams for trucks purchased in 2007 and after.

To see the entire draft permit, CLICK HERE (PDF document),
and for Permit Special Conditions, CLICK HERE

The United States Army Corps of Engineers has received an application from DSNY for the construction and dredging permits it needs. A hearing was held on September 16, 2008. No action is expected on the permits until the status of the NYSDEC permits is resolved. DSNY has filed a notice of intent to acquire land underwater in connection with the MTS with the New York State Office of General Services (OGS). OGS has not yet approved the acquisition.

New York State Supreme Court

There are three lawsuits against various aspects of the SWMP pending in New York State Supreme Court.

LAWSUIT #1
On October 20, 2005 Gracie Point Community Council, together with thirteen other petitioners, including the New York City chapter of the Association of Community Organizations for Reform Now (ACORN), filed a lawsuit in New York State Supreme Court to annul the City’s plans to build the East 91st Street MTS. The lawsuit states that the City’s selection of the East 91st Street site was arbitrary and capricious. It also contends that DSNY conducted an environmental review that was materially defective, that the City Planning Commission’s approval improperly relied on that defective environmental review, that the site selection was unlawful and improper, and that a new MTS at East 91st Street will create a private and public nuisance.

On September 19, 2006 the Court denied the petition to annul the City’s plans and dismissed the nuisance complaint. In its opinion, the Court said that its scope of review is limited to an assessment of whether there is a rational basis for the administrative determination without disturbing underlying factual determinations. The Court further stated that the public policy choices and the advisability of the City’s decisions respecting location of all the MTS’s and rezoning of areas near the MTS site for high-density residential development and commercial zoning are beyond the permissible scope of judicial review. The Court concluded by saying it was rational for the City to have selected the existing East 91st Street MTS as the site of the proposed facility. In reaching that conclusion, the Court accepted the City’s representations that the location offers operational convenience for transferring waste collected in the area, that no rezoning of the site is required, and using an existing City owned property is more cost effective that the alternative of purchasing or condemning waterfront property elsewhere for a containerization facility.

As to the nuisance complaint, the Court said that while the City is not immune to liability for public and private nuisances, our cause of action is barred because DSNY either has found no significant adverse environmental impacts that will result from the MTS, or has implemented measures mitigating significant impacts.

We appealed the Court’s decision to the Appellate Division, First Department. On June 26, 2008 the Appellate Division issued a decision affirming the Supreme Court ruling. The Court of Appeals rejected the motion for leave to appeal, effectively ending Lawsuit #1.

LAWSUIT #2

On June 13, 2006, six plaintiffs from Harlem and the Gracie Point and Yorkville neighborhoods filed a lawsuit in New York State Supreme Court. This lawsuit asserts that the City’s garbage plan violates a 1913 state statute and the common law Public Trust Doctrine, both of which protect public parklands from being used for non-park uses. The complaint and petition alleges that the proposed demolition and reconstruction of the 91st Street marine transfer station and access ramp, and the operation of the station, constitute an alienation of the Asphalt Green and Bobby Wagner Walk parklands, requiring the approval of the state legislature.

On June 21, 2007 the court rejected the City's move to dismiss the suit and ruled that it may go forward to a hearing on the merits. On a separate issue the court rejected our argument that the City's environmental impact statement did not take a 'hard look' at the impact of construction of the MTS on Asphalt Green. Following a prolonged period of discovery, now completed, the City has moved for a summary judgment. The plaintiffs filed a cross motion for summary judgment. In a decision dated December 21, 2009, Judge Michael Stallman ruled against the plaintiff group. Judge Stallman rejected the argument that Asphalt Green and Bobby Wagner Walk are parks and therefore entitled to the protection of the “Public Trust Doctrine”. In his decision, Stallman said that Asphalt Green was not dedicated to public use and Bobby Wagner Walk is a thoroughfare, not a park which recreation has as its primary purpose. Stallman also said, that even if they were held to be parks, the proposed construction of the ramp is not a substantial intrusion on parkland for non-park purposes.

LAWSUIT # 3 and 4

On August 27, 2009 Gracie Point Community Council and five other petitioners filed two petitions under Article 78 to overturn the determination made on July 27, 2009 by the NYSDEC assistant commissioner affirming the administrative law judge’s findings rejecting our challenges to his rulings and directing the staff to issues the five permits required for the proposed transfer station.

One of the petitions was filed in New York County and the other in Albany County. The New York County petition addresses specifically the tidal wetlands permit and seeks to annul the determination by the assistant commissioner that affirmed the rulings by the judge that we did not identify any issues for an adjudicatory hearing during the administrative proceeding regarding the draft permits.

The Albany petition asserts that NYSDEC has the power and the duty to ensure that transfer stations not harm public health, safety and welfare and it has the power to deny proposed permits for a transfer station when it would be harmful. Also, it asserts that the proposed East 91st Street transfer station is not necessary because reasonable, existing and operating alternatives exist. The petition requests that the four requested permits, besides the tidal wetlands permit, be annulled or enjoined.

New York State Legislature

During the 2008 legislative session, Assembly Member Micah Kellner introduced legislation (A.10891-A/S.8168-A) with State Senator Ruben Diaz, Sr. prohibiting the siting of a solid-waste transfer station or facility within 800 feet of a public housing project, so that the city’s garbage management efforts do not unfairly impact communities that are already under-served and over-burdened. If enacted this legislation would prohibit the City from pursuing construction of a marine transfer station (MTS) at East 91st Street along the East River, which is less than 300 feet from two public housing projects – the Stanley Isaacs Houses and John Haynes Homes Towers. This MTS would also be situated next door to East Harlem, which has been called the “asthma capital of New York,” and has an asthma hospitalization rate five times the city average. The MTS would also subject our densely populated residential community – especially our children, who are most vulnerable – to the pollution from constant streams of garbage trucks while polluting Asphalt Green’s park and its athletic fields, which are heavily used by thousands of children.

Many of Kellner’s colleagues in the Legislature agree that waste transfer stations should be kept away from economically disadvantaged neighborhoods and the bill enjoys widespread support. This past legislative session it was overwhelmingly approved by the Assembly’s Environmental Conservation Committee and the Codes Committee, but unfortunately was not voted on by the full Assembly before the 2008 session concluded its business. In March, 2009 Kellner introduced the bill in the Assembly as A06829 and state Senator Ruben Diaz introduced an identical bill in the state Senate as S3123. Both bills were referred to the Environment and Conservation committees of their respective Houses. Kellner’s bill was reported out of committee on May 19, 2009 and referred to the Codes committee. No action has taken place on the bill since. Diaz’ bill is still in committee.

TO WIN THIS FIGHT WE CONTINUE TO NEED THE PARTICIPATION OF THE ENTIRE UPPER EAST SIDE COMMUNITY AND WE NEED IT ON AN ONGOING BASIS!

Watch the NEWS and NEWSLETTER sections of the Gracie Point Community Council web site for further announcements.

You Can Stop the Garbage!